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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Nashua District Court No. 2008-868 THE STATE OF NEW HAMPSHIRE v. JAMES KELLY Argued: October 15, 2009 Opinion Issued: November 17, 2009 Orville B. Fitch, II, acting attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief, and Elizabeth C. Woodcock, assistant attorney general, orally), for the State. Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant. DALIANIS, J. The defendant, James Kelly, appeals an order of the Nashua District Court (Bamberger, J.) imposing his previously deferred sentence. We affirm. The record evidences the following facts. In 2006, the defendant was found guilty of violating a protective order. He was sentenced to serve twelve months in jail, with the sentence deferred for one year. In August 2008, the defendant was found guilty of violating a protective order for conduct that

occurred in October 2006. He appealed the 2008 conviction to this court; his appeal is currently pending. Based only upon the 2008 conviction, the State asked the court to impose the previously deferred sentence. The defendant argued that the court could not impose the deferred sentence based upon the 2008 conviction alone because his appeal of that conviction was still pending. The trial court disagreed, and imposed the deferred sentence. This appeal followed. The sole issue for our review is whether the trial court erred by imposing the previously deferred sentence based only upon a non-final conviction. We review a trial court's imposition of a deferred sentence for an unsustainable exercise of discretion. See State v. Gibbs, 157 N.H. 538, 540 (2008) (standard of review for decisions to impose suspended sentences). We have previously held that there is a condition of good behavior implied in deferred and suspended sentences. State v. Auger, 147 N.H. 752, 753 (2002). "Good behavior" is limited to conduct conforming to the law. State v. Palermo, 146 N.H. 144, 146 (2001). A deferred sentence may be imposed upon proof by a preponderance of the evidence of a violation of the condition upon which the sentence was deferred. See Gibbs, 157 N.H. at 540 (referring to suspended sentences). "To impose a suspended or deferred sentence on the ground that the defendant has violated . . . [a] condition of good behavior, a trial court must find that the defendant engaged in criminal conduct." Auger, 147 N.H. at 753. When a sentence has been deferred upon a condition of good behavior, the State satisfies its burden of proof "either by establishing the fact of a criminal conviction for the acts which constitute the violation or by proof of the commission of the underlying acts." Gibbs, 157 N.H. at 540 (quotation omitted; emphases added). The defendant argues that, in this case, evidence of his non-final conviction was insufficient, standing alone, to prove that he violated the condition of good behavior. Absent "proof of the commission of the underlying acts," he argues, the trial court erred by imposing the deferred sentence. Id. (quotation omitted); see Moody v. Cunningham, 127 N.H. 550, 553-54 (1986) (holding evidence of criminal indictment was insufficient, standing alone, to justify imposing suspended sentence; "[i]n the absence of a criminal conviction, the fact-finder must make an independent determination that the defendant committed the alleged violations"). This precise issue is one of first impression in New Hampshire. We, therefore, look to other jurisdictions for guidance. See State v. Legere, 157 N.H. 746, 752 (2008), cert. denied, 129 S. Ct. 1623 (2009). In the related context of revocation of probation, "[t]he great weight of authority in this country permits the revocation of probation based solely upon the probationer's

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subsequent criminal conviction, even though that conviction is pending on appeal." Hutchinson v. State, 438 A.2d 1335, 1336 (Md. 1982) (citing cases); see United States v. Gentile, 610 F.2d 541, 542 (8th Cir. 1979) ("Federal courts have consistently ruled that a criminal conviction provides sufficient grounds for revocation of probation even though an appeal from the conviction is still pending."); see also 6 W. LaFave et al., Criminal Procedure

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